Federal Register / Vol. 78, No. 74 / Wednesday, April 17, 2013 / Proposed Rules 22827 

involving a determination on the record 

after opportunity for a hearing. 

* * * * * 

(e) * * * 

(4) * * * 

(i) Publicly posting a copy of the 

document in the reception area of the 

Postal Regulatory Commission located 

at 901 New York Avenue NW., Suite 

200, Washington, DC 20268–0001; 

* * * * * 

(g) * * * 

(1) * * * 

(iii) Ten copies of such requests must 

be received by the Office of Secretary 

and Administration no later than three 

working days after the issuance of the 

notice of meeting to which the request 

pertains. Requests received after that 

time will be returned to the requester 

with a statement that the request was 

untimely received and that copies of 

any nonexempt portions of the 

transcript or minutes for the meeting in 

question will ordinarily be available in 

the Office of Secretary and 

Administration 10 working days after 

the meeting. 

(2) * * * 

(iii) Ten copies of such requests 

should be filed with the Office of 

Secretary and Administration as soon as 

possible after the issuance of the notice 

of meeting to which the request 

pertains. However, a single copy of the 

request will be accepted. Requests to 

close meetings must be received by the 

Office of Secretary and Administration 

no later than the time scheduled for the 

meeting to which such a request 

pertains. 

* * * * * 

Subpart D—Rules Applicable to 

Requests for Changes in the Nature of 

Postal Services 

■ 26. Revise § 3001.72 to read as 

follows: 

Subpart D—Rules Applicable to 

Requests for Changes in the Nature of 

Postal Services 

§ 3001.72 Filing of formal requests. 

Whenever the Postal Service 

determines to request that the 

Commission issue an advisory opinion 

on a proposed change in the nature of 

postal services subject to this subpart, 

the Postal Service shall file with the 

Commission a formal request for such 

an opinion in accordance with the 

requirements of §§ 3001.9 to 3001.11 

and § 3001.74. Such request shall be 

filed not less than 90 days in advance 

of the date on which the Postal Service 

proposes to make effective the change in 

the nature of postal services involved. 

Within 5 days after the Postal Service 

has filed a formal request for an 

advisory opinion in accordance with 

this subsection, the Secretary shall 

lodge a notice thereof with the Director 

of the Federal Register for publication in 

the Federal Register. 

■ 27. Revise § 3001.75 to read as 

follows: 

§ 3001.75 Service by the Postal Service. 

The provisions of § 3001.12 govern 

the Postal Service’s service 

requirements for proceedings conducted 

under this subpart. Service must be 

made on all participants as defined in 

§ 3001.5(h). 

[FR Doc. 2013–09037 Filed 4–16–13; 8:45 am] 

BILLING CODE 7710–FW–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2013–0233; FRL–9803–1] 

Approval and Promulgation of 

Implementation Plans; State of 

Kansas; Infrastructure SIP 

Requirements for the 1997 and 2006 

Fine Particulate Matter National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing action on 

four Kansas State Implementation Plan 

(SIP) submissions. First, EPA is 

proposing to approve portions of two 

SIP submissions from the State of 

Kansas addressing the applicable 

requirements of Clean Air Act (CAA) for 

the 1997 and 2006 National Ambient 

Air Quality Standards (NAAQS) for fine 

particulate matter (PM2.5). The CAA 

requires that each state adopt and 

submit a SIP to support implementation, 

maintenance, and enforcement of each 

new or revised NAAQS promulgated by 

EPA. These SIPs are commonly referred 

to as ‘‘infrastructure’’ SIPs. The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. EPA is 

also proposing to approve two 

additional SIP submissions from 

Kansas, one addressing the Prevention 

of Significant Deterioration (PSD) 

program in Kansas, and another 

addressing the requirements applicable 

to any board or body which approves 

permits or enforcement orders of the 

CAA, both of which support 

requirements associated with 

infrastructure SIPs. 

DATES: Comments must be received on 

or before May 17, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2013–0233, by one of the 

following methods: 

1. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

2. Email: kemp.lachala@epa.gov. 

3. Mail: Ms. Lachala Kemp, Air 

Planning and Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, KS 66219. 

4. Hand Delivery or Courier: Deliver 

your comments to Ms. Lachala Kemp, 

Air Planning and Development Branch, 

U.S. Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, KS 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2013– 

0233. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or email 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 


tkelley on DSK3SPTVN1PROD with PROPOSALS
22828 Federal Register / Vol. 78, No. 74 / Wednesday, April 17, 2013 / Proposed Rules 

1On March 19, 2013, Kansas submitted its 

provisions with regards to CAA section 128 as part 

of its infrastructure SIP submission for the 2008 

Ozone and 2010 Nitrogen Dioxide(NO2) NAAQS. 

EPA believes that these conflict of interest 

provisions are applicable to all NAAQS. Therefore, 

as part of today’s rulemaking for the 1997 and 2006 

p.m. 2.5 NAAQS, we are proposing to approve these 

provisions into the Kansas SIP. See section V for 

further information. 

2William T. Harnett, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ Memorandum to EPA Air Division 

Directors, Regions I–X, October 2, 2007 (2007 

Memo). 

3William T. Harnett, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ Memorandum to 

EPA Regional Air Division Directors, Regions I–X, 

September 25, 2009 (2009 Memo). 

4Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 through 4. 

Prongs 1 and 2 are provided at section 

110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at 

section 110(a)(2)(D)(i)(II). 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 7, 11201 Renner 

Boulevard, Lenexa, KS 66219 from 8:00 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

interested persons wanting to examine 

these documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lachala Kemp, Air Planning and 

Development Branch U.S. 

Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, KS 66219; telephone number: 

(913) 551–7214; fax number: (913) 551– 

7065; email address: 

kemp.lachala@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer 

to EPA. This section provides additional 

information by addressing the following 

questions: 

I. What is being addressed in this document? 

II. What is a section 110(a)(1) and (2) 

Infrastructure SIP? 

III. What elements are applicable under 

sections 110(a)(1) and (2)? 

IV. What is the scope of this rulemaking as 

it relates to infrastructure SIPs? 

V. What is EPA’s evaluation of how the State 

addressed the relevant elements of 

sections 110(a)(1) and (2)? 

VI. How does the March 1, 2013, Kansas PSD 

submission satisfy the 2008 PM2.5 NSR 

Rule and the PM2.5 PSD Increment-SILsSMC Rule? 

VII. What are the additional provisions of the 

March 1, 2013, SIP submission that EPA 

is proposing to take action on? 

VIII. What action is EPA proposing? 

IX. Statutory and Executive Order Review 

X. Statutory Authority 

I. What is being addressed in this 

document? 

In today’s proposed rulemaking, EPA 

is proposing action on four Kansas SIP 

submissions. EPA received the first 

submission on January 8, 2008, 

addressing the infrastructure SIP 

requirements relating to the 1997 PM2.5

NAAQS. EPA received the second 

submission on April 12, 2010, 

addressing the infrastructure SIP 

requirements relating to the 2006 PM2.5

NAAQS In a previous action EPA 

approved section 110(a)(2)(D)(i)(I) and 

(II)—Interstate and international 

transport requirements of Kansas’ 

January 8, 2008, SIP submittal for the 

1997 PM2.5 NAAQS (72 FR 10608, May 

8, 2007); and EPA disapproved section 

110(a)(2)(D)(i)(I)—Interstate and 

international transport requirements of 

Kansas’ April 12, 2010, SIP submittal for 

the 2006 PM2.5 NAAQS (76 FR 43143, 

July 20, 2011). Therefore, in today’s 

action, we are not proposing to act on 

these portions of section 110(a)(2)since 

they have already been acted upon by 

EPA. If EPA takes final action as 

proposed, we will have acted on both 

the January 8, 2008, and the April 12, 

2010, submissions in their entirety 

excluding those provisions that are not 

within the scope of today’s rulemaking 

as identified in section IV for both the 

1997 and 2006 PM2.5 infrastructure SIP 

submissions. 

The third submission was received by 

EPA on March 1, 2013. This submission 

revises the Kansas rule found at Kansas 

Administrative Regulations (KAR) 29– 

19–350 ‘‘Prevention of Significant 

Deterioration of Air Quality’’ to 

incorporate by reference Federal rule 

changes through July 1, 2011. These 

changes implement elements of the 

Prevention of Significant Deterioration 

(PSD) regulations relating to EPA’s 2008 

NSR PM2.5 Implementation Rule (73 FR 

28321, May 16, 2008) and certain 

elements of the ‘‘Prevention of 

Significant Deterioration (PSD) for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC)’’ rule (75 FR 64864, October 20, 

2010). In addition, this rule amendment 

defers the application of PSD permitting 

requirements to carbon dioxide (CO2) 

emissions from bioenergy and other 

biogenic stationary sources. 

The fourth submission was received 

by EPA on March 19, 2013. This 

submittal addresses the conflict of 

interest provisions in section 128 of the 

CAA as it relates to infrastructure SIPs 

described in element E below.1

II. What is a section 110(a)(1) and (2) 

infrastructure SIP? 

Section 110(a)(1) of the CAA requires, 

in part, that states make a SIP 

submission to EPA to implement, 

maintain and enforce each of the 

NAAQS promulgated by EPA after 

reasonable notice and public hearings. 

Section 110(a)(2) includes a list of 

specific elements that such 

infrastructure SIP submissions must 

address. SIPs meeting the requirements 

of sections 110(a)(1) and (2) are to be 

submitted by states within three years 

after promulgation of a new or revised 

NAAQS. These SIP submissions are 

commonly referred to as 

‘‘infrastructure’’ SIPs. 

III. What elements are applicable under 

sections 110(a)(1) and (2)? 

On October 2, 2007, EPA issued 

guidance to address infrastructure SIP 

elements required under sections 

110(a)(1) and (2) for the 1997 8-hour 

ozone and PM2.5 NAAQS.2 On 

September 25, 2009, EPA issued 

guidance to address infrastructure SIP 

elements required under sections 

110(a)(1) and (2) for the 2006 24-hour 

PM2.5 NAAQS.3 EPA will address these 

elements below under the following 

headings: (A) Emission limits and other 

control measures; (B) Ambient air 

quality monitoring/data system; (C) 

Program for enforcement of control 

measures (PSD, New Source Review for 

nonattainment areas, and construction 

and modification of all stationary 

sources) ; (D) Interstate and 

international transport 4; (E) Adequate 

authority, resources, implementation, 

and oversight; (F) Stationary source 

monitoring system; (G) Emergency 

authority; (H) Future SIP revisions; (I) 

Nonattainment areas; (J) Consultation 

with government officials, public 

notification, prevention of significant 

deterioration (PSD), and visibility 

protection; (K) Air quality and 

modeling/data; (L) Permitting fees; and 

(M) Consultation/participation by 

affected local entities. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 74 / Wednesday, April 17, 2013 / Proposed Rules 22829 

5The specific nonattainment area plan 

requirements of section 110(a)(2)(I), are subject to 

the timing requirements of section 172, not the 

timing requirement of section 110(a)(1). Thus, 

section 110(a)(2)(A) does not require that states 

submit regulations or emissions limits specifically 

for attaining the 1997 or 2006 PM2.5 NAAQS. Those 

SIP provisions are due as part of each state’s 

attainment plan, and will be addressed separately 

from the requirements of section 110(a)(2)(A). In the 

context of an infrastructure SIP, EPA is not 

evaluating the existing SIP provisions for this 

purpose. Instead, EPA is only evaluating whether 

the state’s SIP has basic structural provisions for the 

implementation of the NAAQS. 

IV. What is the scope of this rulemaking 

as it relates to infrastructure SIPs? 

The applicable infrastructure SIP 

requirements are contained in sections 

110(a)(1) and (2) of the CAA. EPA is 

proposing action on each of the 

requirements of section 110(a)(2)(A) 

through section 110(a)(2)(M), as 

applicable, except for the elements 

detailed in the following paragraphs. 

This rulemaking will not cover four 

substantive issues that are not integral 

to acting on a state’s infrastructure SIP 

submission: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that purport to permit 

revisions to SIP approved emissions 

limits with limited public process or 

without requiring further approval by 

EPA, that may be contrary to the CAA 

(‘‘director’s discretion’’); (iii) existing 

provisions for minor source New Source 

Review (NSR) programs that may be 

inconsistent with the requirements of 

the CAA and EPA’s regulations that 

pertain to such programs (‘‘minor source 

NSR’’); and, (iv) existing provisions for 

PSD programs that may be inconsistent 

with current requirements of EPA’s 

‘‘Final NSR Improvement Rule’’ (67 FR 

80186, December 31, 2002), as amended 

by the ‘‘NSR Reform’’ final rulemaking 

on June 13, 2007 (72 FR 32526). Instead, 

EPA has indicated that it has other 

authority to address any such existing 

SIP defects in other rulemakings, as 

appropriate. A detailed rationale for 

why these four substantive issues are 

not part of the scope of infrastructure 

SIP rulemakings can be found at 76 FR 

41075, 41076–41079 (July 13, 2011). See 

also 77 FR 38239, 38240–38243 (June 

27, 2012); and 77 FR 46361, 46362– 

46365 (August 3, 2012). 

In addition to the four substantive 

areas above, EPA is not acting in this 

action on section 110(a)(2)(I)— 

Nonattainment Area Plan or Plan 

Revisions Under Part D and on the 

visibility protection portion of section 

110(a)(2)(J). A detailed rationale for not 

acting on elements of these 

requirements is discussed within each 

applicable section of this rulemaking. 

As described above in section I, EPA is 

also not acting on portions of section 

110(a)(2)(D)(i)—Interstate and 

international transport, as final actions 

have already been taken on portions of 

this element for both the Kansas 1997 

and 2006 PM2.5 infrastructure SIP 

submissions. 

Finally, as part of this action, EPA is 

evaluating the state’s compliance with 

the new PSD requirements promulgated 

in the ‘‘Implementation of New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5),’’ (73 FR 28321, May 16, 2008), 

and the PM2.5 Increment, SILs and SMC 

Rule, (75 FR 64864, October 20, 2010). 

Regarding the May 16, 2008 rule, on 

January 4, 2013, the U.S. Court of 

Appeals in the District of Columbia, in 

Natural Resources Defense Council v. 

EPA, 706 F.3d 428 (DC Cir.), issued a 

judgment that remanded two of EPA’s 

rules implementing the 1997 PM2.5

NAAQS, including the 2008 rule. The 

Court ordered the EPA to ‘‘repromulgate 

these rules pursuant to Subpart 4 

consistent with this opinion.’’ Id. at 437. 

Subpart 4 of Part D, Title 1 of the CAA 

establishes additional provisions for 

particulate matter nonattainment areas. 

The 2008 implementation rule 

addressed by the Court’s decision 

promulgated NSR requirements for 

implementation of PM2.5 in both 

nonattainment areas (nonattainment 

NSR) and attainment/unclassifiable 

areas (PSD). As the requirements of 

Subpart 4 only pertain to nonattainment 

areas, EPA does not consider the 

portions of the 2008 rule that address 

requirements for PM2.5 attainment and 

unclassifiable areas to be affected by the 

Court’s opinion. Moreover, the EPA 

does not anticipate the need to revise 

any PSD requirements promulgated in 

the 2008 rule in order to comply with 

the Court’s decision. Accordingly, EPA’s 

approval of Kansas’ infrastructure SIP as 

to Elements (C), (D)(i)(II), and (J), with 

respect to the PSD requirements 

promulgated by the 2008 

implementation rule does not conflict 

with the Court’s opinion. 

The Court’s decision with respect to 

the nonattainment NSR requirements 

promulgated by the 2008 

implementation rule also does not affect 

EPA’s action on the present 

infrastructure SIP submission. As 

described above, EPA interprets the Act 

to exclude nonattainment area 

requirements, including requirements 

associated with a nonattainment NSR 

program, from infrastructure SIP 

submissions due 3 years after adoption 

or revision of a NAAQS. Instead, these 

elements are typically referred to as 

nonattainment SIP or attainment plan 

elements, which states must submit by 

the dates statutorily prescribed under 

part D within subparts 2 through 5, 

extending as far as ten years following 

designations for some elements. Given 

these separate applicable SIP 

submission dates, EPA concludes that 

these specific requirements are outside 

the scope of the infrastructure SIPs. 

V. What is EPA’s evaluation of how the 

State addressed the relevant elements 

of sections 110(a)(1) and (2)? 

On July 18, 1997, EPA promulgated 

new PM2.5 primary and secondary 

NAAQS (62 FR 38652). On October 17, 

2006, EPA made further revisions to the 

primary and secondary NAAQS for 

PM2.5 (71 FR 61144). On January 8, 

2008, EPA Region 7 received Kansas’ 

particulate matter infrastructure SIP 

submission for the 1997 PM2.5 standard. 

On April 12, 2010, EPA Region 7 

received Kansas’ particulate matter 

infrastructure SIP submittal for the 2006 

PM2.5 standard. These SIP submissions 

became complete as a matter of law on 

July 8, 2008, and October 12, 2010, 

respectively. EPA has reviewed both of 

the State’s infrastructure SIP 

submissions and the relevant statutory 

and regulatory authorities and 

provisions referenced in those 

submittals or referenced in Kansas’ SIP. 

(A) Emission limits and other control 

measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission 

limits and other control measures, 

means or techniques, schedules for 

compliance and other related matters as 

needed to implement, maintain and 

enforce each NAAQS.5

The state of Kansas’ statutes and 

regulations authorize the Kansas 

Department of Health and Environment 

(KDHE) to regulate air quality and 

implement air quality control 

regulations. KDHE’s statutory authority 

can be found in Chapter 65, Article 30 

of the Kansas Statutes Annotated (KSA), 

otherwise known as the Kansas Air 

Quality Act. KSA Section 65–3003 

places the responsibility for air quality 

conservation and control of air pollution 

with the Secretary of Health and 

Environment (‘‘Secretary’’). The 

Secretary in turn administers the Kansas 

Air Quality Act through the Division of 

Environment within KDHE. Air 

pollution is defined in KSA Section 65– 

3002(c) as the presence in the outdoor 

atmosphere of one or more air 

contaminants in such quantities and 


tkelley on DSK3SPTVN1PROD with PROPOSALS
22830 Federal Register / Vol. 78, No. 74 / Wednesday, April 17, 2013 / Proposed Rules 

6For the reasons stated earlier, EPA is not 

addressing SSM and director’s discretion provisions 

in this rulemaking. 

7As discussed in further detail below, this 

infrastructure SIP rulemaking will not address the 

Kansas program for nonattainment area related 

provisions, since EPA considers evaluation of these 

provisions to be outside the scope of infrastructure 

SIP actions. 

duration as is, or tends significantly to 

be, injurious to human health or 

welfare, animal or plant life, or 

property, or would unreasonably 

interfere with the enjoyment of life or 

property, or would contribute to the 

formation of regional haze. 

KSA Section 65–3005(a)(1) provides 

authority to the Secretary to adopt, 

amend and repeal rules and regulations 

implementing the Kansas Air Quality 

Act. It also gives the Secretary the 

authority to establish ambient air 

quality standards for the state of Kansas 

as a whole or for any part thereof. KSA 

Section 65–3005(a)(12). The Secretary 

has the authority to promulgate rules 

and regulations to ensure that Kansas is 

in compliance with the provisions of the 

Act, in furtherance of a policy to 

implement laws and regulations 

consistent with those of the Federal 

government. KSA Section 65–3005(b). 

The Secretary also has the authority to 

establish emission control requirements 

as appropriate to facilitate the 

accomplishment of the purposes of the 

Kansas Air Quality Act. KSA Section 

65–3010(a). 

Based upon review of the state’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has statutory and regulatory authority to 

establish additional emissions 

limitations and other measures, as 

necessary to address attainment and 

maintenance of the PM2.5 standards. 

Therefore, EPA believes that the Kansas 

SIP adequately addresses the 

requirements of section 110(a)(2)(A) for 

the 1997 and 2006 PM2.5 NAAQS 6 and 

is proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(B) Ambient air quality monitoring/ 

data system: Section 110(a)(2)(B) 

requires SIPs to include provisions to 

provide for establishment and operation 

of ambient air quality monitors, 

collection and analysis of ambient air 

quality data, and making these data 

available to EPA upon request. 

To address this element, KSA Section 

65–3007 provides the enabling authority 

necessary for Kansas to fulfill the 

requirements of section 110(a)(2)(B). 

This provision gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

Furthermore, the Secretary has the 

authority to require such air 

contaminant sources to monitor 

emissions, operating parameters, 

ambient impacts of any source 

emissions, and any other parameters 

deemed necessary. The Secretary can 

also require these sources to keep 

records and make reports consistent 

with the Kansas Air Quality Act. KSA 

Section 65–3007(b). 

Kansas has an air quality monitoring 

network operated by KDHE and local air 

quality agencies that collects air quality 

data that are compiled, analyzed, and 

reported to EPA. KDHE’s Web site 

contains up-to-date information about 

air quality monitoring, including a 

description of the network and 

information about the monitoring of 

PM2.5. See, generally, http:// 

www.kdheks.gov/bar/air-monitor/ 

indexMon.html. KDHE also conducts 

five-year monitoring network 

assessments, including the PM2.5

monitoring network, as required by 40 

CFR 58.10(d). On January 10, 2013, EPA 

approved Kansas’ 2012 ambient air 

monitoring network. This plan includes, 

among other things, the locations for the 

PM2.5 monitoring network in Kansas, 

which currently includes 13 monitors 

located at 11 sites. Data gathered by 

these monitors is submitted to EPA’s Air 

Quality System, which in turn 

determines if the network site monitors 

are in compliance with the NAAQS. 

Within KDHE, the Bureau of Air and 

Radiation implements these 

requirements. Along with its other 

duties, the Monitoring and Planning 

Section collects air monitoring data, 

quality assures the results, and reports 

the data. The data are then used to 

develop the appropriate regulatory or 

outreach strategies to reduce air 

pollution. 

Based upon review of the state’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that the 

Kansas SIP meets the requirements of 

section 110(a)(2)(B) for the 1997 and 

2006 24-hour PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(C) Program for enforcement of 

control measures (PSD, New Source 

Review for nonattainment areas, and 

construction and modification of all 

stationary sources): Section 110(a)(2)(C) 

requires states to include the following 

three elements in the SIP: (1) A program 

providing for enforcement of all SIP 

measures described in section 

110(a)(2)(A); (2) a program for the 

regulation of the modification and 

construction of stationary sources as 

necessary to protect the applicable 

NAAQS (i.e., state-wide permitting of 

minor sources); and (3) a permit 

program to meet the major source 

permitting requirements of the CAA (for 

areas designated as attainment or 

unclassifiable for the NAAQS in 

question).7

(1) Enforcement of SIP Measures. 

With respect to enforcement of 

requirements of the SIP, KSA Section 

65–3005(a)(3) gives the Secretary the 

authority to issue orders, permits and 

approvals as may be necessary to 

effectuate the purposes of the Kansas 

Air Quality Act and enforce the Act by 

all appropriate administrative and 

judicial proceedings. Pursuant to KSA 

Section 65–3006, the Secretary also has 

the authority to enforce rules, 

regulations and standards to implement 

the Kansas Air Quality Act and to 

employ the professional, technical and 

other staff to effectuate the provisions of 

the Act. In addition, if the Secretary or 

the director of the Division of 

Environment finds that any person has 

violated any provision of any approval, 

permit or compliance plan or any 

provision of the Kansas Air Quality Act 

or any rule or regulation promulgated 

thereunder, he or she may issue an 

order directing the person to take such 

action as necessary to correct the 

violation. KSA Section 65–3011. 

KSA Section 65–3018 gives the 

Secretary or the director of the Division 

of Environment the authority to impose 

a monetary penalty against any person 

who, among other things, either violates 

any order or permit issued under the 

Kansas Air Quality Act, or violates any 

provision of the Act or rule or regulation 

promulgated thereunder. Section 65– 

3028 provides for criminal penalties for 

knowing violations. 

(2) Minor New Source Review. Section 

110(a)(2)(C) also requires that the SIP 

include measures to regulate 

construction and modification of 

stationary sources to protect the 

NAAQS. With respect to smaller sources 

that meet the criteria listed in KAR 28– 

19–300(b) ‘‘Construction Permits and 

Approvals,’’ Kansas has a SIP-approved 


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8PM10 refers to particles with diameters between 

2.5 and 10 microns, oftentimes referred to as 

‘‘coarse’’ particles. 

9 In addition to the NSPS for PM, it is noted that 

states regulated ‘‘particulate matter emissions’’ for 

many years in their SIPs for PM, and the same 

indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

10The change finalized in that action does not 

mean that EPA has entirely exempted the inclusion 

of the condensable PM fraction as part of 

accounting for ‘‘particulate matter emissions.’’ It 

may be necessary for PSD sources to count the 

condensable PM fraction with regard to ‘‘particulate 

matter emissions’’ where either the applicable 

NSPS compliance test includes the condensable PM 

fraction or the applicable implementation plan 

requires the condensable PM fraction to be counted. 

See 77 FR 65112. 

permitting program. Any person 

proposing to conduct a construction or 

modification at such a source must 

obtain approval from KDHE prior to 

commencing construction or 

modification. If KDHE determines that 

air contaminant emissions from a source 

will interfere with attainment or 

maintenance of the NAAQS, it cannot 

issue an approval to construct or modify 

that source (KAR 28–19–301(d) 

‘‘Construction Permits and Approvals; 

Application and Issuance’’). 

In this action, EPA is proposing to 

approve Kansas’ infrastructure SIP for 

the 1997 and 2006 PM2.5 standards with 

respect to the general requirement in 

section 110(a)(2)(C) to include a 

program in the SIP that regulates the 

modification and construction of any 

stationary source as necessary to assure 

that the NAAQS are achieved. In this 

action, EPA is not proposing to approve 

or disapprove the state’s existing minor 

NSR program to the extent that it is 

inconsistent with EPA’s regulations 

governing this program. EPA has 

maintained that the CAA does not 

require that new infrastructure SIP 

submissions correct any defects in 

existing EPA-approved provisions of 

minor NSR programs in order for EPA 

to approve the infrastructure SIP for 

element (C) (e.g., 76 FR 41076–41079). 

EPA believes that a number of states 

may have minor NSR provisions that are 

contrary to the existing EPA regulations 

for this program. EPA intends to work 

with states to reconcile state minor NSR 

programs with EPA’s regulatory 

provisions for the program. The 

statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

(3) Prevention of Significant 

Deterioration (PSD) permit program. 

Kansas also has a program approved by 

EPA as meeting the requirements of Part 

C, relating to prevention of significant 

deterioration of air quality. In order to 

demonstrate that Kansas has met this 

sub-element, this PSD program must 

cover requirements for not just PM2.5, 

but for all other regulated NSR 

pollutants as well. To implement the 

PSD permitting component of section 

110(a)(2)(C) for the 1997 and 2006 PM2.5

NAAQS, states were required to submit 

the necessary SIP revisions to EPA by 

May 16, 2011, and July 20, 2012, 

pursuant to EPA’s NSR PM2.5

Implementation Rule (2008 NSR Rule), 

(73 FR 28321, May 16, 2008), and EPA’s 

PM2.5 Increment—Significant Impact 

Levels (SILs)—Significant Monitoring 

Concentration (SMC) rule, (75 FR 64864, 

October 20, 2010). As described in 

section IV above, the January 4, 2013, 

court decision remanding the 2008 rule 

does not impact the EPA’s action as to 

this element. 

The 2008 NSR Rule finalized several 

new requirements for SIPs to address 

sources that emit direct PM2.5 and other 

pollutants that contribute to secondary 

PM2.5 formation. One of these 

requirements is for NSR permits to 

address pollutants responsible for the 

secondary formation of PM2.5, otherwise 

known as precursors. In the 2008 NSR 

Rule, EPA identified precursors to PM2.5

for the PSD program to include sulfur 

dioxide (SO2) and nitrogen oxide (NOX) 

(unless the state demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that NOX emissions in an 

area are not a significant contributor to 

that area’s ambient PM2.5

concentrations) (see 73 FR 28325). The 

2008 NSR Rule also specifies that 

volatile organic compounds (VOCs) are 

not considered to be precursors to PM2.5

in the PSD program unless the state 

demonstrates to the Administrator’s 

satisfaction or EPA demonstrates that 

emissions of VOCs in an area are 

significant contributors to that area’s 

ambient PM2.5 concentrations. The 

specific references to SO2, NOX, and 

VOCs as they pertain to secondary PM2.5

formation are codified at 40 CFR 

51.166(b)(49)(i)(b) and 40 CFR 

52.21(b)(50)(i)(b). The deadline for 

states to submit SIP revisions to their 

PSD programs incorporating these new 

requirements was May 16, 2011 (73 FR 

28341). 

As part of identifying pollutants that 

are precursors to PM2.5, the 2008 NSR 

Rule also revised the definition of 

‘‘significant’’ as it relates to a net 

emissions increase or the potential of a 

source to emit pollutants. Specifically, 

40 CFR 51.166(b)(23)(i) and 40 CFR 

52.21(b)(23)(i) define ‘‘significant’’ for 

PM2.5 to mean the following emissions 

rates: 10 tons per year (tpy) of direct 

PM2.5; 40 tpy of SO2; and 40 tpy of NOX

(unless the state demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that NOX emissions in an 

area are not a significant contributor to 

that area’s ambient PM2.5

concentrations). 

Another provision of the 2008 NSR 

Rule requires states to account for gases 

that could condense to form particulate 

matter, known as condensables, for 

applicability determinations and in 

establishing emission limits for PM2.5

and PM10 8 in NSR permits. EPA 

provided that states were required to 

account for PM2.5 and PM10

condensables beginning on or after 

January 1, 2011. This requirement is 

currently codified in 40 CFR 

51.166(b)(49)(i)(a) and 40 CFR 

52.21(b)(50)(i)(a). Revisions to states’ 

PSD programs incorporating the 

inclusion of condensables were required 

to be submitted to EPA by May 16, 2011 

(73 FR at 28341). 

The definition of ‘‘regulated NSR 

pollutant’’ in the PSD provisions of the 

2008 rule inadvertently required states 

to also account for the condensable PM 

fraction with respect to one indicator of 

PM referred to as ‘‘particular matter 

emissions.’’ The term ‘‘particulate 

matter emissions’’ includes PM2.5 and 

PM10 particles as well as larger particles, 

and is an indicator for PM that has long 

been used for measuring PM under 

various New Source Performance 

Standards (NSPS) (40 CFR part 60).9 A 

similar provision addressing 

condensables was added to the 

Nonattainment NSR SIP provisions of 

the 2008 NSR Rule but does not include 

a requirement to account for 

‘‘particulate matter (PM) emissions’’ in 

all cases (40 CFR 

51.165(a)(1)(xxxvii)(D)). On October 12, 

2012, EPA finalized a rulemaking to 

amend the definition of ‘‘regulated NSR 

pollutant’’ promulgated in the NSR 

PM2.5 Rule regarding the PM 

condensable provision currently at 40 

CFR 51.166(b)(49)(i)(a), 

52.21(b)(50)(i)(a), and the EPA’s 

Emissions Offset Interpretative Ruling 

(see 77 FR 65107). The rulemaking 

removes the inadvertent requirement in 

the 2008 NSR Rule that the 

measurement of condensables be 

generally included as part of the 

measurement and regulation of 

‘‘particulate matter emissions.’’ 10


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11Section 169(4) of the CAA provides that the 

baseline concentration of a pollutant for a particular 

baseline area is generally the same air quality at the 

time of the first application for a PSD permit in the 

area. 

12Baseline dates are pollutant specific. That is, a 

complete PSD application establishes the baseline 

date only for those regulated NSR pollutants that 

are projected to be emitted in significant amounts 

(as defined in the regulations) by the applicant’s 

new source or modification. Thus, an area may have 

different baseline dates for different pollutants. 

13EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQS with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. Rather, EPA retained the annual and 24-hour 

NAAQS for PM10 as if PM2.5 was a new pollutant 

even though EPA had already developed air quality 

criteria for PM generally (75 FR 64864). 

14EPA interprets 166(a) to authorize EPA to 

promulgate pollutant-specific PSD regulations 

meeting the requirements of section 166(c) and 

166(d) for any pollutant for which EPA promulgates 

a NAAQS after 1977. 

The 2010 PM2.5 Increment-Significant 

Impact Levels (SILS)—Significant 

Monitoring Concentration (SMC) Rule 

provided additional regulatory 

requirements under the PSD SIP 

program regarding the implementation 

of the PM2.5 NAAQS (see 75 FR 64864). 

As a result, the PM2.5 PSD IncrementSILs-SMC Rule required states to submit 

SIP revisions to adopt the required PSD 

increments by July 20, 2012. 

Specifically, the rule required a state’s 

submitted PSD SIP revision to adopt 

and submit for EPA approval the PM2.5

increments pursuant to section 166(a) of 

the CAA to prevent significant 

deterioration of air quality in areas 

meeting the NAAQS. 

That rule also permitted states, at 

their discretion, to choose to adopt and 

submit for EPA approval into the SIP 

SILs, used as a screening tool (by a 

major source subject to PSD), to evaluate 

the impact a proposed major source or 

modification may have on the NAAQS 

or PSD increment; and a SMC (also a 

screening tool), used by a major source 

subject to PSD to determine the 

subsequent level of data gathering 

required for a PSD permit application 

for emissions of PM2.5. More detail on 

the PM2.5 PSD Increment-SILs-SMC Rule 

can be found at 75 FR 64864. In regards 

to the SILs and SMC provisions of the 

2010 PM2.5 rule, on January 22, 2013, 

the U.S. Court of Appeals for the District 

of Columbia, in Sierra Club v. EPA, No. 

10–1413 (filed Dec. 17, 2010), issued a 

judgment that, inter alia, vacated and 

remanded the provisions concerning 

implementation of the PM2.5 SILs and 

vacated the provisions adding the PM2.5

SMC that were promulgated as part of 

the 2010 PM2.5 PSD Rule. 

Accordingly, the only remaining 

requirements from the 2010 rule are the 

PM2.5 increment and associated 

provisions discussed below. Under 

section 165(a)(3) of the CAA, a PSD 

permit applicant must demonstrate that 

emissions from the proposed 

construction and operation of a facility 

‘‘will not cause, or contribute to, air 

pollution in excess of any maximum 

allowable increase or allowable 

concentration for any pollutant.’’ In 

other words, when a source applies for 

a PSD SIP permit to emit a regulated 

pollutant in an attainment or 

unclassifiable area, the permitting 

authority implementing the PSD SIP 

must determine if emissions of the 

regulated pollutant from the source will 

cause significant deterioration in air 

quality. Significant deterioration occurs 

when the amount of the new pollution 

exceeds the applicable PSD increment, 

which is the ‘‘maximum allowable 

increase’’ of an air pollutant allowed to 

occur above the applicable baseline 

concentration 11 for that pollutant. PSD 

increments prevent air quality in 

attainment and unclassifiable areas from 

deteriorating up to or beyond the level 

set by the NAAQS. Therefore, an 

increment is the mechanism used to 

estimate ‘‘significant deterioration’’ of 

air quality for a pollutant in an area. 

For PSD baseline purposes, a baseline 

area for a particular pollutant emitted 

from a source includes the attainment or 

unclassifiable/attainment area in which 

the source is located, as well as any 

other attainment or unclassifiable/ 

attainment area in which the source’s 

emissions of that pollutant are projected 

(by air quality modeling) to result in an 

ambient pollutant increase of at least 1 

ug/m3 (annual average) (40 CFR 

51.166(b)(15)(i) and (ii)). Under EPA’s 

existing regulations, the establishment 

of a baseline area for any PSD increment 

results from the submission of the first 

complete PSD permit application after a 

trigger date (which for PM2.5 is defined 

as October 20, 2011, by regulation) and 

is based on the location of the proposed 

source and its emissions impact on the 

area. Once the baseline area is 

established, subsequent PSD sources 

locating in that area must consider that 

a portion of the available increment may 

have already been consumed by 

previous emissions increases. In 

general, the submittal date of the first 

complete PSD permit application in a 

particular area is the operative ‘‘baseline 

date.’’ 12 On or before the date of the 

first complete PSD application, 

emissions generally are considered to be 

part of the baseline concentration, 

except for certain emissions from major 

stationary sources. Most emissions 

increases that occur after the baseline 

date will be counted toward the amount 

of increment consumed. Similarly, 

emissions decreases after the baseline 

date restore or expand the amount of 

increment that is available (see 75 FR 

64864). As described in the PM2.5 PSD 

Increment-SILs-SMC Rule, pursuant to 

the authority under section 166(a) of the 

CAA, EPA promulgated numerical 

increments for PM2.5 as a new 

pollutant 13 for which the NAAQS were 

established after August 7, 1977,14 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III) using 

the ‘‘contingent safe harbor’’ approach 

(75 FR at 64869 and table at 40 CFR 

51.166(c)(1)). 

In addition to PSD increments for the 

2006 PM2.5 NAAQS, the PM2.5 PSD 

Increment–SILs–SMC Rule amended the 

definition at 40 CFR 51.166 and 40 CFR 

52.21 for ‘‘major source baseline date’’ 

and ‘‘minor source baseline date’’ to 

establish the PM2.5 NAAQS specific 

dates (including trigger dates) associated 

with the implementation of PM2.5 PSD 

increments. See the PSD Increment– 

SILs–SMC rule for a more detailed 

discussion on the amendments to these 

definitions (75 FR 64864). In accordance 

with section 166(b) of the CAA, EPA 

required the states to submit revised 

implementation plans adopting the 

PM2.5 PSD increments to EPA for 

approval within 21 months from 

promulgation of the final rule (i.e., by 

July 20, 2012). Each state was 

responsible for determining how 

increment consumption and the setting 

of the minor source baseline date for 

PM2.5 would occur under its own PSD 

program. Regardless of when a state 

begins to require PM2.5 increment 

analysis and how it chooses to set the 

PM2.5 minor source baseline date, the 

emissions from sources subject to PSD 

for PM2.5 for which construction 

commenced after October 20, 2010, 

(major source baseline date) consume 

the PM2.5 increment and therefore 

should be included in the increment 

analyses occurring after the minor 

source baseline date is established for 

an area under the state’s revised PSD 

SIP program. 

To meet the requirements of element 

(C), in addition to the PM2.5 PSD 

elements that must be incorporated in to 

the SIP, each state’s PSD program must 

meet applicable requirements for all 

regulated pollutants in PSD permits. For 

example, if a state lacks provisions 

needed to address NOX as a precursor to 

ozone, the provisions of section 

110(a)(2)(C) requiring a suitable PSD 

permitting program for PM2.5 will not be 

considered to be met. 

Relating to ozone, the EPA’s ‘‘Final 

Rule to Implement the 8-Hour Ozone 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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15William T. Harnett, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards ‘‘Guidance on SIP Elements Required 

Under Sections 110(a(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS).’’ Memorandum to 

EPA Regional Air Division Directors, Regions I–X, 

September 25, 2009. 

National Ambient Air Quality 

Standard—Phase 2; Final Rule to 

Implement Certain Aspects of the 1990 

Amendments Relating to New Source 

Review and Prevention of Significant 

Deterioration as They Apply in Carbon 

Monoxide, Particulate Matter, and 

Ozone NAAQS; Final Rule for 

Reformulated Gasoline’’ (Phase 2 Rule), 

was published on November 8, 2005 (70 

FR 71612). Among other requirements, 

the Phase 2 Rule obligated states to 

revise their PSD programs to explicitly 

identify NOX as a precursor to ozone (70 

FR at 71679, and at 71699–71700). This 

requirement is currently codified in 40 

CFR 51.166(b)(49)(i)(b). 

EPA notes that the Kansas SIP 

provides that ozone precursors (volatile 

organic compounds (VOCs) and 

nitrogen oxides) are regulated. The 

regulations at 40 CFR 52.21(b)(50) 

specifically state that nitrogen oxides 

and VOCs are considered precursors for 

ozone in all attainment and 

unclassifiable areas. For example, a 

stationary source that is major for VOCs 

is also major for ozone for purposes of 

permitting in nonattainment areas (KAR 

28–19–16a(r) ‘‘New Source Permit 

Requirements for Designated 

Nonattainment Areas’’). In addition, a 

source that undergoes a significant net 

emissions increase for VOCs is also 

considered to have undergone a 

significant net emissions increase for 

ozone for the purposes of the Kansas air 

quality regulations (KAR 28–19– 

200(eee)(6) ‘‘General Provisions; 

Definitions’’). The ozone provisions 

were previously approved by EPA into 

the Kansas SIP on February 22, 2011 (76 

FR 9658). 

As a part of today’s rulemaking, EPA 

is proposing to approve amendments to 

Kansas’ PSD regulations for PM2.5 into 

the SIP. See section VI for EPA’s 

analysis of how Kansas’ March 1, 2013, 

submission meets the PSD 

requirements. 

Regarding greenhouse gases (GHG), on 

June 3, 2010, EPA issued a final rule 

establishing a ‘‘common sense’’ 

approach to addressing GHG emissions 

from stationary sources under the CAA 

permitting programs. The ‘‘Prevention 

of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule,’’ or 

‘‘Tailoring Rule,’’ set thresholds for 

GHG emissions that define when 

permits under the NSR PSD and title V 

operating permit programs are required 

for new and existing industrial facilities 

(see 75 FR 31514). Without the new 

threshold provided by the Tailoring 

Rule, sources with GHG emissions 

above the statutory thresholds (of 100 or 

250 tons per year) would be subject to 

PSD, which could have potentially 

resulted in apartment complexes, strip 

malls, small farms, restaurants, etc. 

triggering GHG PSD requirements. 

With respect to the applicability of 

the Kansas PSD program to GHG 

emissions, on February 22, 2011, EPA 

approved in to the Kansas SIP an 

amendment that would regulate GHGs 

under Kansas’ PSD program (76 FR 

9658). Thus, we have previously 

determined that the Kansas SIP meets 

the PSD requirements with respect to 

GHGs. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS and the 

March 1, 2013, submission regarding 

PSD requirements, and relevant 

statutory and regulatory authorities and 

provisions referenced in those 

submissions or referenced in Kansas’ 

SIP, with respect to the requirements of 

section 110(a)(2)(C) for the 1997 and 

2006 24-hour PM2.5 NAAQS, EPA is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements, 

the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements, and the March 1, 

2013, submission regarding the PSD 

requirements. EPA’s analysis of the 

March 1, 2013, submittal is provided in 

section VI below. 

(D) Interstate and international 

transport: 

Section 110(a)(2)(D)(i)(I) requires SIPs 

to include adequate provisions 

prohibiting any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment, or interfering with 

maintenance, of any NAAQS in another 

state. Furthermore, section 

110(a)(2)(D)(i)(II) requires SIPs to 

include adequate provisions prohibiting 

any source or other type of emissions 

activity in one state from interfering 

with measures required of any other 

state to prevent significant deterioration 

of air quality or to protect visibility. 

Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 

through 4. Prongs 1 and 2 are provided 

at section 110(a)(2)(D)(i)(I); Prongs 3 and 

4 are provided at section 

110(a)(2)(D)(i)(II). 

In this notice, we are not proposing to 

take any actions related to the interstate 

transport requirements of section 

110(a)(2)(D)(i)(I)—prongs 1 and 2. At 

this time, there is no SIP submission 

from Kansas relating to 110(a)(2)(D)(i)(I) 

for the 1997 or 2006 PM2.5 NAAQS 

pending before the Agency. EPA 

previously approved the provisions of 

the Kansas SIP submission addressing 

the requirements of section 

110(a)(2)(D)(i)(I), with respect to the 

1997 PM2.5 standards, into the Kansas 

SIP on May 8, 2007 (72 FR 10608). EPA 

also disapproved the portion of the 

Kansas SIP submission intended to 

address section 110(a)(2)(D)(i)(I) with 

respect to the 2006 PM2.5 standards (76 

FR 43143, July 20, 2011). 

With respect to the PSD requirements 

of section 110(a)(2)(D)(i)(II)—prong 3, 

EPA notes that Kansas’ satisfaction of 

the applicable infrastructure SIP PSD 

requirements for the 1997 and 2006 

PM2.5 NAAQS has been detailed in the 

section addressing section 110(a)(2)(C). 

EPA also notes that the proposed action 

in that section related to PSD is 

consistent with the proposed approval 

related to PSD for section 

110(a)(2)(D)(i)(II). Therefore, EPA is 

proposing to approve the PSD 

requirements of section 

110(a)(2)(D)(i)(II)—prong 3. 

With regard to the applicable 

requirements for visibility protection of 

section 110(a)(2)(D)(i)(II)—prong 4, 

states are subject to visibility and 

regional haze program requirements 

under part C of the CAA (which 

includes sections 169A and 169B). The 

2009 Memo 15 states that these 

requirements can be satisfied by an 

approved SIP addressing reasonably 

attributable visibility impairment, if 

required, and an approved SIP 

addressing regional haze. 

EPA’s final approval of Kansas’ 

regional haze plan ‘‘Approval and 

Promulgation of Implementation Plans; 

State of Kansas: Regional Haze’’ was 

published on December 27, 2011 (76 FR 

80754). In this final approval, EPA 

determined that the Kansas SIP met 

requirements of the CAA, for states to 

prevent any future and existing 

anthropogenic impairment of visibility 

in Class I areas caused by emissions of 

air pollutants located over a wide 

geographic area. Therefore, EPA 

proposes that Kansas has met the 

infrastructure SIP requirements of 

section 110(a)(2)(D)(i)(II) related to 

visibility protection for the 1997 and 

2006 PM2.5 NAAQS. 

Section 110(a)(2)(D)(ii) also requires 

that the SIP insure compliance with the 

applicable requirements of sections 126 

and 115 of the CAA, relating to 

interstate and international pollution 

abatement, respectively. 

Section 126(a) of the Act requires new 

or modified sources to notify 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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16 KAR 28–19–16k(b) provides similar 

requirements for construction permits issued in 

nonattainment areas. 

17See Memorandum from David O. Bickart to 

Regional Air Directors, ‘‘Guidance to States for 

Meeting Conflict of Interest Requirements of 

Section 128,’’ Suggested Definitions, March 2, 1978. 

neighboring states of potential impacts 

from sources within the state. The 

Kansas regulations address abatement of 

the effects of interstate pollution. For 

example, KAR 28–19–350(k)(2) 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality’’ requires KDHE, 

prior to issuing any construction permit 

for a proposed new major source or 

major modification, to notify EPA, as 

well as: any state or local air pollution 

control agency having jurisdiction in the 

air quality control region in which the 

new or modified installation will be 

located; the chief executives of the city 

and county where the source will be 

located; any comprehensive regional 

land use planning agency having 

jurisdiction where the source will be 

located; and any state, Federal land 

manager, or Indian governing body 

whose lands will be affected by 

emissions from the new source or 

modification.16 See also KAR 28–19–204 

‘‘General Provisions; Permit Issuance 

and Modification; Public Participation’’ 

for additional public participation 

requirements. In addition, no Kansas 

source or sources have been identified 

by EPA as having any interstate impacts 

under section 126 in any pending 

actions relating to any air pollutant. 

Section 115 of the CAA authorizes 

EPA to require a state to revise its SIP 

under certain conditions to alleviate 

international transport into another 

country. There are no final findings 

under section 115 of the CAA against 

Kansas with respect to any air pollutant. 

Thus, the State’s SIP does not need to 

include any provisions to meet the 

requirements of section 115. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(D)(i)(II)— 

Prongs 3 and 4 and 110(a)(2)(D)(ii) for 

the 1997 and 2006 PM2.5 NAAQS. EPA 

is proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(E) Adequate authority, resources, 

implementation, and oversight: Section 

110(a)(2)(E) requires that SIPs provide 

for the following: (1) Necessary 

assurances that the state (and other 

entities within the state responsible for 

implementing the SIP) will have 

adequate personnel, funding, and 

authority under State or local law to 

implement the SIP, and that there are no 

legal impediments to such 

implementation; (2) requirements that 

the state comply with the requirements 

relating to state boards, pursuant to 

section 128 of the CAA; and (3) 

necessary assurances that the state has 

responsibility for ensuring adequate 

implementation of any plan provision 

for which it relies on local governments 

or other entities to carry out that portion 

of the plan. 

(1) Section 110(a)(2)(E)(i) requires 

states to establish that they have 

adequate personnel, funding, and 

authority. With respect to adequate 

authority, we have previously discussed 

Kansas’ statutory and regulatory 

authority to implement the 1997 and 

2006 PM2.5 NAAQS, primarily in the 

discussion of section 110(a)(2)(A) above. 

Neither Kansas nor EPA have identified 

any legal impediments in the State’s SIP 

to implementation of these NAAQS. 

With respect to adequate resources, 

KDHE asserts that it has adequate 

personnel to implement the SIP. The 

Kansas statutes provide the Secretary 

the authority to employ technical, 

professional and other staff to effectuate 

the purposes of the Kansas Air Quality 

Act from funds appropriated and 

available for these purposes. See KSA 

Section 65–3006(b). Within KDHE, the 

Bureau of Air and Radiation implements 

the Kansas Air Quality Act. This Bureau 

is further divided into the Air 

Compliance & Enforcement Section, Air 

Permit Section; the Monitoring & 

Planning Section; and the Radiation and 

Asbestos Control Section. 

With respect to funding, the Kansas 

Legislature annually approves funding 

and personnel resources for KDHE to 

implement the air program. The annual 

budget process provides a periodic 

update that enables KDHE and the local 

agencies to adjust funding and 

personnel needs. In addition, the Kansas 

statutes grant the Secretary authority to 

establish various fees for sources, to 

cover any and all parts of administering 

the provisions of the Kansas Air Quality 

Act. For example, KSA Section 65– 

3008(f) grants the Secretary authority to 

fix, charge, and collect fees for 

construction approvals and permits (and 

the renewals thereof). KSA Section 65– 

3024 grants the Secretary the authority 

to establish annual emissions fees. 

These emission fees, along with any 

moneys recovered by the state under the 

provisions of the Kansas Air Quality 

Act, are deposited into an air quality fee 

fund in the state treasury. Moneys in the 

air quality fee fund can only be used for 

the purpose of administering the Kansas 

Air Quality Act. 

Kansas also uses funds in the nonTitle V subaccounts, along with General 

Revenue funds and EPA grants under, 

for example, sections 103 and 105 of the 

Act, to fund the programs. EPA 

conducts periodic program reviews to 

ensure that the state has adequate 

resources and funding to, among other 

things, implement the SIP. 

(2) Conflict of interest provisions— 

Section 128 

Section 110(a)(2)(E)(ii) also requires 

that each state SIP meet the 

requirements of section 128, relating to 

representation on state boards and 

conflicts of interest by members of such 

boards. Section 128(a)(1) requires that 

any board or body which approves 

permits or enforcement orders under the 

CAA must have at least a majority of 

members who represent the public 

interest and do not derive any 

‘‘significant portion’’ of their income 

from persons subject to permits and 

enforcement orders under the CAA. 

Section 128(a)(2) requires that members 

of such a board or body or the head of 

an agency with similar powers, 

adequately disclose any potential 

conflicts of interest. In 1978, EPA issued 

a guidance memorandum 

recommending ways that states could 

meet the requirements of section 128, 

including suggested interpretations of 

certain terms in section 128.17 EPA has 

not issued further guidance or 

regulations of general applicability on 

the subject since that time. However, 

EPA has recently proposed certain 

interpretations of section 128 as part of 

its actions on other infrastructure SIPs 

consistent with the statutory 

requirements (see, e.g., (77 FR 44555, 

July 30, 2012) and (77 FR 66398, 

November 5, 2012)). We are now 

proposing these same interpretations in 

relation to the Kansas SIP. 

On March 19, 2013, Kansas submitted 

to EPA specific provisions of the Kansas 

statutes that address section 128, for 

inclusion into the SIP. In today’s action, 

we are also proposing to approve 

Kansas’ March 19, 2013, submission 

related to sections 110(a)(2)(E)(ii) and 

128 of the CAA. Due to the fact that this 

proposed rule revision is not yet stateeffective, Kansas requested that EPA 

‘‘parallel process’’ the revision. Under 

this procedure, the EPA Regional Office 

works closely with the state while 

developing new or revised regulations. 

Generally, the state submits a copy of 


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the proposed regulation or other 

revisions to EPA before conducting its 

public hearing. EPA reviews this 

proposed state action and prepares a 

notice of proposed rulemaking. EPA 

publishes this notice of proposed 

rulemaking in the Federal Register and 

solicits public comment in 

approximately the same time frame 

during which the state is holding its 

public hearing. The state and EPA thus 

provide for public comment periods on 

both the state and the Federal actions in 

parallel. After Kansas submits the 

formal state-effective rule and SIP 

revision request (including a response to 

all public comments raised during the 

state’s public participation process), 

EPA will prepare a final rulemaking 

notice for the SIP revision. If changes 

are made to the state’s proposed rule 

after EPA’s notice of proposed 

rulemaking, such changes must be 

acknowledged in EPA’s final 

rulemaking action. If the changes are 

significant, then EPA may be obliged to 

re-propose the action. In addition, if the 

changes render the SIP revision not 

approvable, EPA’s re-proposal of the 

action would be a disapproval of the 

revision. EPA and Kansas have worked 

to assure that the state’s SIP correctly 

addresses these requirements. 

EPA’s analysis consisted of review of 

Kansas’ March 19, 2013, SIP submission 

and EPA’s additional review of Kansas’ 

statutes and authorities. The first step in 

the analysis consists of identifying 

boards, bodies and persons responsible 

for approving permits and enforcement 

orders and determining the applicability 

of the section 128 requirements to these 

entities. The Kansas Air Quality Act 

does not establish any boards or bodies 

that are responsible for approving 

permits or enforcement orders; rather, 

that authorities lies exclusively with the 

Secretary (see KSA Section 65– 

3005(a)(3)). Therefore, EPA believes the 

requirements of section 128(a)(1) do not 

apply to Kansas. 

To satisfy section 128(a)(2) of the 

CAA, Kansas submitted to EPA KSA 

Section 46–247(c) for inclusion into the 

SIP on March 19, 2013. This provision 

requires state officers (as defined at KSA 

Section 46–221), employees and 

members of boards, councils and 

commissions under the jurisdiction of 

the head of any state agency to file 

written statements of substantial 

interests (as that term is defined at KSA 

Section 46–229). Thus, Kansas law 

requires disclosure of any potential 

conflicts of interest by the head of an 

agency responsible for issuing permits 

and enforcement orders (i.e., KDHE). 

EPA believes that the above identified 

relevant sections of the Kansas statutes 

directly address the provisions related 

to section 128(a)(2) of the CAA. We 

propose to approve the following 

provisions into the Kansas SIP as they 

strengthen the SIP with respect to the 

conflict of interest requirements of CAA 

section 128: 

• KSA Section 46–221 

• KSA Section 46–229 

• KSA Section 46–247(c) 

(3) With respect to assurances that the 

state has responsibility to implement 

the SIP adequately when it authorizes 

local or other agencies to carry out 

portions of the plan, KSA Section 65– 

3005(a)(8) grants the Secretary authority 

to encourage local units of government 

to handle air pollution problems within 

their own jurisdictions and to provide 

technical and consultative assistance 

therefore. The Secretary may also enter 

into agreements with local units of 

government to administer all or part of 

the provisions of the Kansas Air Quality 

Act in the units’ respective 

jurisdictions. In fact, KSA Section 65– 

3016 allows for cities and/or counties 

(or combinations thereof) to form local 

air quality conservation authorities. 

These authorities will then have the 

authority to enforce air quality rules and 

regulations adopted by the Secretary 

and adopt any additional rules, 

regulations and standards as needed to 

maintain satisfactory air quality within 

their jurisdictions. 

At the same time, the Kansas statutes 

also retain authority in the Secretary to 

carry out the provisions of the state air 

pollution control law. KSA Section 65– 

3003 specifically places responsibility 

for air quality conservation and control 

of air pollution with the Secretary. The 

Secretary shall then administer the 

Kansas Air Quality Act through the 

Division of Environment. As an example 

of this retention of authority, KSA 

Section 65–3016 only allows for the 

formation of local air quality 

conservation authorities with the 

approval of the Secretary. In addition, 

although these authorities can adopt 

additional air quality rules, regulations 

and standards, they may only do so if 

those rules, regulations and standards 

are in compliance with those set by the 

Secretary for that area. Currently, KDHE 

oversees the following local agencies 

that implement that Kansas Air Quality 

Act: The City of Wichita Office of 

Environmental Health, Johnson County 

Department of Health & Environment, 

Shawnee County Health Agency, and 

Unified Government of Wyandotte 

County—Kansas City, Kansas Public 

Health Department. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS and the 

March 19, 2013, SIP submission, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(E) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements, and the March 19, 

2013, submission relating to section 128 

requirements. 

(F) Stationary source monitoring 

system: Section 110(a)(2)(F) requires 

states to establish a system to monitor 

emissions from stationary sources and 

to submit periodic emission reports. 

Each SIP shall require the installation, 

maintenance, and replacement of 

equipment, and the implementation of 

other necessary steps, by owners or 

operators of stationary sources, to 

monitor emissions from such sources. 

The SIP shall also require periodic 

reports on the nature and amounts of 

emissions and emissions-related data 

from such sources, and requires that the 

state correlate the source reports with 

emission limitations or standards 

established under the CAA. These 

reports must be made available for 

public inspection at reasonable times. 

To address this element, KSA Section 

65–3007 gives the Secretary the 

authority to classify air contaminant 

sources which, in his or her judgment, 

may cause or contribute to air pollution. 

The Secretary shall require air 

contaminant emission sources to 

monitor emissions, operating 

parameters, ambient impact of any 

source emissions, and any other 

parameters deemed necessary. 

Furthermore, the Secretary may require 

these emissions sources to keep records 

and make reports consistent with the 

purposes of the Kansas Air Quality Act. 

In addition, KAR 28–19–12(A) 

‘‘Measurement of Emissions’’ states that 

KDHE may require any person 

responsible for the operation of an 

emissions source to make or have tests 

made to determine the rate of 

contaminant emissions from the source 

whenever it has reason to believe that 

existing emissions exceed limitations 

specified in the Kansas air quality 

regulations. At the same time, KDHE 

may also conduct its own tests of 

emissions from any source. KAR 28–19– 

12(B). The Kansas regulations also 

require that all Class I operating permits 

include requirements for monitoring of 

emissions (KAR 28–19–512(a)(9) ‘‘Class 

I Operating Permits; Permit Content’’). 


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Kansas makes all monitoring reports 

(as well as compliance plans and 

compliance certifications) submitted as 

part of a construction permit or Class I 

or Class II permit application publicly 

available. See KSA Section 65–3015(a); 

KAR 28–19–204(c)(6) ‘‘General 

Provisions; Permit Issuance and 

Modification; Public Participation.’’ 

KDHE uses this information to track 

progress towards maintaining the 

NAAQS, developing control and 

maintenance strategies, identifying 

sources and general emission levels, and 

determining compliance with emission 

regulations and additional EPA 

requirements. Although the Kansas 

statutes allow a person to request that 

records or information reported to 

KDHE be regarded and treated as 

confidential on the grounds that it 

constitutes trade secrets, emission data 

is specifically excluded from this 

protection. See KSA Section 65–3015(b). 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(F) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(G) Emergency authority: Section 

110(a)(2)(G) requires SIPs to provide for 

authority to address activities causing 

imminent and substantial endangerment 

to public health or welfare or the 

environment (comparable to the 

authorities provided in Section 303 of 

the CAA), and to include contingency 

plans to implement such authorities as 

necessary. 

KSA Section 65–3012(a) states that 

whenever the Secretary receives 

evidence that emissions from an air 

pollution source or combination of 

sources presents an imminent and 

substantial endangerment to public 

health or welfare or to the environment, 

he or she may issue a temporary order 

directing the owner or operator, or both, 

to take such steps as necessary to 

prevent the act or eliminate the practice. 

Upon issuance of this temporary order, 

the Secretary may then commence an 

action in the district court to enjoin 

these acts or practices. 

KAR 28–19–56 ‘‘Episode Criteria’’ 

allows the Secretary to proclaim an air 

pollution alert, air pollution warning, or 

air pollution emergency whenever he or 

she determines that the accumulation of 

air contaminants at any sampling 

location has attained levels which 

could, if such levels are sustained or 

exceeded, threaten the public health. 

KAR 28–19–57 ‘‘Emission Reduction 

Requirements’’ imposes restrictions on 

emission sources in the event one of 

these three air pollution episode 

statuses is declared. 

With respect to the contingency plan 

requirements of section 110(a)(2)(G), 

EPA has issued guidance making 

recommendations for how states may 

elect to approach this issue. In that 

guidance, EPA recommended that, 

where a state can demonstrate that PM2.5

levels have remained below 140.4 

micrograms per cubic meter, the state is 

not required to develop a contingency 

plan to satisfy element (G). EPA believes 

that this is a reasonable interpretation of 

the statute and addresses the PM2.5

NAAQS in a way analogous to other 

NAAQS pollutants. PM2.5 monitoring 

data from monitors across the state have 

shown that 24-hour PM2.5 values have 

never exceeded 140.4 micrograms per 

cubic meter in Kansas. Therefore, 

Kansas is not required to develop a 

contingency plan for PM2.5 at this time. 

That said, the Kansas regulations 

provide that any person responsible for 

the operation of a source of air 

contamination adjudged to be of major 

concern with respect to the possible 

implementation of air pollution 

emergency episode control procedures 

either because of the nature or the 

quantity of its emissions must, at the 

request of KDHE, prepare an emergency 

episode plan to be implemented in the 

event that such an episode is declared. 

See KAR 28–19–58 ‘‘Emergency Episode 

Plans’’. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(G) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(H) Future SIP revisions: Section 

110(a)(2)(H) requires states to have the 

authority to revise their SIPs in response 

to changes in the NAAQS, availability of 

improved methods for attaining the 

NAAQS, or in response to an EPA 

finding that the SIP is substantially 

inadequate to attain the NAAQS. 

KSA Section 65–3005(b) specifically 

states that it is the policy of the state of 

Kansas to regulate the air quality of the 

state and implement laws and 

regulations that are applied equally and 

uniformly throughout the state and 

consistent with that of the Federal 

government. Therefore, the Secretary 

has the authority to promulgate rules 

and regulations to ensure that Kansas is 

in compliance with the provisions of the 

Federal CAA. KSA 65–3005(b)(1). 

As discussed previously, KSA Section 

65–3005(a)(1) provides authority to the 

Secretary to adopt, amend and repeal 

rules and regulations implementing and 

consistent with the Kansas Air Quality 

Act. The Secretary also has the authority 

to establish ambient air quality 

standards for the state of Kansas or any 

part thereof. KSA Section 65– 

3005(a)(12). Therefore, as a whole, the 

Secretary has the authority to revise 

rules as necessary to respond to any 

necessary changes in the NAAQS. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has adequate infrastructure needed to 

address section 110(a)(2)(H) for the 1997 

and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(I) Nonattainment areas: Section 

110(a)(2)(I) requires that in the case of 

a plan or plan revision for areas 

designated as nonattainment areas, 

states must meet applicable 

requirements of Part D of the CAA, 

relating to SIP requirements for 

designated nonattainment areas. 

As noted earlier, EPA does not expect 

infrastructure SIP submissions to 

address subsection (I). The specific SIP 

submissions for designated 

nonattainment areas, as required under 

CAA title I, part D, are subject to a 

different submission schedule than 

those for section 110 infrastructure 

elements. Instead, EPA will take action 

on part D attainment plan SIP 

submissions through a separate 

rulemaking governed by the 

requirements for nonattainment areas, 

as described in part D. 

(J) Consultation with government 

officials, public notification, PSD and 

visibility protection: Section 110(a)(2)(J) 

requires SIPs to meet the applicable 

requirements of the following CAA 

provisions: (1) Section 121, relating to 


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interagency consultation regarding 

certain CAA requirements; (2) section 

127, relating to public notification of 

NAAQS exceedances and related issues; 

and (3) Part C of the CAA, relating to 

prevention of significant deterioration of 

air quality and visibility protection. 

(1) With respect to interagency 

consultation, the SIP should provide a 

process for consultation with generalpurpose local governments, designated 

organizations of elected officials of local 

governments, and any Federal Land 

Manager having authority over Federal 

land to which the SIP applies. KSA 

Section 65–3005(a)(14) grants the 

Secretary the authority to advise, 

consult and cooperate with other 

agencies of the state, local governments, 

other states, interstate and interlocal 

agencies, and the Federal government. 

Furthermore, as noted earlier in the 

discussion on section 110(a)(2)(D), 

Kansas’ regulations require that 

whenever it receives a construction 

permit application for a new source or 

a modification, KDHE must notify state 

and local air pollution control agencies, 

as well as regional land use planning 

agencies and any state, Federal land 

manager, or Indian governing body 

whose lands will be affected by 

emissions from the new source or 

modification. See KAR 28–19–350(k)(2) 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality.’’ 

(2) With respect to the requirements 

for public notification in CAA section 

127, the infrastructure SIP should 

provide citations to regulations in the 

SIP requiring the air agency to regularly 

notify the public of instances or areas in 

which any NAAQS are exceeded; advise 

the public of the health hazard 

associated with such exceedances; and 

enhance public awareness of measures 

that can prevent such exceedances and 

of ways in which the public can 

participate in the regulatory and other 

efforts to improve air quality. As 

discussed previously with element (G), 

KAR 28–19–56 ‘‘Episode Critera’’ 

contains provisions that allow the 

Secretary to proclaim an air pollution 

alert, air pollution warning, or air 

pollution emergency status whenever he 

or she determines that the accumulation 

of air contaminants at any sampling 

location has attained levels which 

could, if such levels are sustained or 

exceeded, threaten the public health. 

Any of these emergency situations can 

also be declared by the Secretary even 

in the absence of issuance of a high air 

pollution potential advisory or 

equivalent advisory from a local 

weather bureau meteorologist, if 

deemed necessary to protect the public 

health. In the event of such an 

emergency situation, public notification 

will occur through local weather 

bureaus. 

In addition, information regarding air 

pollution and related issues, is provided 

on a KDHE Web site, http:// 

www.kdheks.gov/bar/. This information 

includes air quality data, information 

regarding the NAAQS, health effects of 

poor air quality, and links to the Kansas 

Air Quality Monitoring Network. KDHE 

also has an ‘‘Outreach and Education’’ 

Web page (http://www.kdheks.gov/bar/ 

air_outreach/air_quality_edu.htm) with 

information on how individuals can 

take measures to reduce emissions and 

improve air quality in daily activities. 

(3) With respect to the applicable 

requirements of Part C of the CAA, 

relating to prevention of significant 

deterioration of air quality and visibility 

protection, we note in section VI of this 

rulemaking how the Kansas SIP meets 

the PSD requirements, incorporating the 

Federal rule by reference. With respect 

to the visibility component of section 

110(a)(2)(J), EPA recognizes that states 

are subject to visibility and regional 

haze program requirements under part C 

of the CAA. However, when EPA 

establishes or revises a NAAQS, these 

visibility and regional haze 

requirements under part C do not 

change. EPA believes that there are no 

new visibility protection requirements 

under part C as a result of a revised 

NAAQS. Therefore, there are no newly 

applicable visibility protection 

obligations pursuant to element J after 

the promulgation of a new or revised 

NAAQS. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(J) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(K) Air quality and modeling/data: 

Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality 

modeling, as prescribed by EPA, to 

predict the effects on ambient air quality 

of any emissions of any NAAQS 

pollutant, and for submission of such 

data to EPA upon request. 

Kansas has authority to conduct air 

quality modeling and report the results 

of such modeling to EPA. KSA Section 

65–3005(a)(9) gives the Secretary the 

authority to encourage and conduct 

studies, investigations and research 

relating to air contamination and air 

pollution and their causes, effects, 

prevention, abatement and control. As 

an example of regulatory authority to 

perform modeling for purposes of 

determining NAAQS compliance, the 

regulations at KAR 28–19–350 

‘‘Prevention of Significant Deterioration 

(PSD) of Air Quality’’ incorporate EPA 

modeling guidance in 40 CFR part 51, 

appendix W for the purposes of 

demonstrating compliance or noncompliance with a NAAQS. 

The Kansas statutes and regulations 

also give KDHE the authority to require 

that modeling data be submitted for 

analysis. KSA Section 65–3007(b) grants 

the Secretary the authority to require air 

contaminant emission sources to 

monitor emissions, operating 

parameters, ambient impact of any 

source emissions or any other 

parameters deemed necessary. The 

Secretary may also require these sources 

to keep records and make reports 

consistent with the purposes of the 

Kansas Air Quality Act. These reports 

could include information as may be 

required by the Secretary concerning the 

location, size, and height of 

contaminant outlets, processes 

employed, fuels used, and the nature 

and time periods or duration of 

emissions, and such information as is 

relevant to air pollution and available or 

reasonably capable of being assembled. 

KSA Section 65–3007(c). 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(K) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

(L) Permitting Fees: Section 

110(a)(2)(L) requires SIPs to require 

each major stationary source to pay 

permitting fees to the permitting 

authority, as a condition of any permit 

required under the CAA, to cover the 

cost of reviewing and acting upon any 

application for such a permit, and, if the 

permit is issued, the cost of 

implementing and enforcing the terms 

of the permit. The fee requirement 

applies until a fee program established 

by the state pursuant to Title V of the 


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CAA, relating to operating permits, is 

approved by EPA. 

KSA Section 65–3008(f) allows the 

Secretary to fix, charge, and collect fees 

for approvals and permits (and the 

renewals thereof). KSA Section 65–3024 

grants the Secretary the authority to 

establish annual emissions fees. Fees 

from the construction permits and 

approvals are deposited into the Kansas 

state treasury and credited to the state 

general fund. Emissions fees are 

deposited into an air quality fee fund in 

the Kansas state treasury. Moneys in the 

air quality fee fund can only be used for 

the purpose of administering the Kansas 

Air Quality Act. 

Kansas’ Title V program, found at 

KAR 28–19–500 to 28–19–564, was 

approved by EPA on January 30, 1996 

(61 FR 2938). EPA is reviewing the 

Kansas Title V program, including Title 

V fee structure, separately from this 

proposed action. Because the Title V 

program and associated fees legally are 

not part of the SIP, the infrastructure 

SIP action we are proposing today does 

not preclude EPA from taking future 

action regarding Kansas’ Title V 

program. 

Therefore, EPA believes that the 

requirements of section 110(a)(2)(L) are 

met and is therefore proposing to 

approve the January 8, 2008, submittal 

regarding the 1997 PM2.5 infrastructure 

SIP requirements and the April 12, 

2010, submittal regarding the 2006 

PM2.5 infrastructure SIP requirements 

for this element. 

(M) Consultation/participation by 

affected local entities: Section 

110(a)(2)(M) requires SIPs to provide for 

consultation and participation by local 

political subdivisions affected by the 

SIP. 

KSA Section 65–3005(a)(8)(A) gives 

the Secretary the authority to encourage 

local units of government to handle air 

pollution problems within their 

respective jurisdictions and on a 

cooperative basis and to provide 

technical and consultative assistance 

therefor. The Secretary may also enter 

into agreements with local units of 

government to administer all or part of 

the provisions on the Kansas Air 

Quality Act in the units’ respective 

jurisdiction. The Secretary also has the 

authority to advise, consult, and 

cooperate with local governments. KSA 

Section 65–3005(a)(14). He or she may 

enter into contracts and agreements 

with local governments as is necessary 

to accomplish the goals of the Kansas 

Air Quality Act. KSA Section 65– 

3005(a)(16). 

Currently, KDHE’s Bureau of Air and 

Radiation has signed State and/or Local 

Agreements with the Department of Air 

Quality from the Unified Government of 

Wyandotte County-Kansas City, Kansas; 

the Wichita Office of Environmental 

Health; the Shawnee County Health 

Department, the Johnson County 

Department of Health & Environment; 

and the Mid-America Regional Council. 

These agreements establish formal 

partnerships between the Bureau of Air 

and Radiation and these local agencies 

to work together to develop and 

annually update strategic goals, 

objectives and strategies for reducing 

emissions and improving air quality. 

In addition, as previously noted in the 

discussion about section 110(a)(2)(J), 

Kansas’ statutes and regulations require 

that KDHE consult with local political 

subdivisions for the purposes of 

carrying out its air pollution control 

responsibilities. 

Based upon review of the State’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS, and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the adequate infrastructure needed 

to address section 110(a)(2)(M) for the 

1997 and 2006 PM2.5 NAAQS and is 

proposing to approve the January 8, 

2008, submission regarding the 1997 

PM2.5 infrastructure SIP requirements 

and the April 12, 2010, submission 

regarding the 2006 PM2.5 infrastructure 

SIP requirements for this element. 

VI. How does the March 1, 2013 Kansas 

PSD submission satisfy the 2008 PM2.5

NSR Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule? 

To address the requirements of EPA’s 

May 16, 2008, PM2.5 implementation 

rule and the October 20, 2010, PM2.5

PSD Increment-SILs-SMC Rule, as 

described above in section V in the 

discussion of element (C), Kansas 

submitted a SIP revision received by 

EPA on March 1, 2013, which updates 

its PSD rules. In this SIP submission, 

Kansas incorporates by reference 

Federal updates through July 1, 2011. 

The submission also updated Kansas’ 

PSD rules to establish the allowable 

PM2.5 increments, the optional screening 

tools (SILs), and significant monitoring 

concentrations (SMCs). On April 2, 

2013, Kansas amended and clarified its 

submission so that it was no longer 

intending to include specific provisions 

relating to the SILs and SMC affected by 

the January 22, 2013, court decision 

referenced above. Our analysis of the 

SIP revision, with respect to both rules, 

follows. 

Specifically, regarding the 2008 PM2.5

Implementation Rule, the submitted SIP 

revision changes include incorporating 

by reference Federal rule changes 

through July 1, 2011. The submission is 

being updated for consistency with 40 

CFR 52.21, which established the 

requirement for NSR permits to address 

directly emitted PM2.5 and precursor 

pollutants and promulgated significant 

emissions rates, and condensables for 

direct PM2.5 and precursor pollutants 

(SO2 and NOX). 

As described under element C in 

section V of this rulemaking, states had 

an obligation to address condensable 

PM emissions as a part of the 2008 PM2.5

NSR implementation rule. In Kansas’ 

March 1, 2013, SIP submission, Kansas 

incorporated by reference EPA’s 

definition for regulated NSR pollutant 

(formerly at 40 CFR 51.166(b)(49)(vi)), 

including the term ‘‘particulate matter 

emissions,’’ as inadvertently 

promulgated in the 2008 NSR Rule. EPA 

is, however, proposing to approve into 

the Kansas SIP the requirement that 

condensable PM be accounted for in 

applicability determinations and in 

establishing emissions limitations for 

PM2.5 and PM10 because it is more 

stringent than the Federal requirement. 

Kansas can choose to initiate further 

rulemaking to ensure consistency with 

federal requirements. 

Specifically, regarding the PSD 

increments, the submitted SIP revision 

changes include: (1) The PM2.5

increments as promulgated at 40 CFR 

51.166(c)(1) and (p)(4) (for Class I 

Variances) and (2) amendments to the 

terms ‘‘major source baseline date’’ (at 

40 CFR 51.166(b)(14)(i)(c)) and 

52.21(b)(14)(i)(c)), ‘‘minor source 

baseline date’’ (including establishment 

of the ‘‘trigger date’’) and ‘‘baseline 

area’’ (as amended at 40 CFR 

51.166(b)(15)(i) and (ii) and 

52.21(b)(15)(i)). In the March 1, 2013, 

SIP revision, Kansas incorporates by 

reference into the SIP the particular 

definitions from 40 CFR part 51 as 

referenced above through July 1, 2011. 

In today’s action, EPA is proposing to 

approve Kansas’ March 1, 2013, 

revisions to address the provisions 

relating to both the 2008 PM2.5 NSR 

implementation and the 2010 PM2.5 PSD 

Increments SILs-SMC Rules, except as 

identified in Kansas’ April 2, 2013, 

letter where Kansas amended and 

clarified its submission so that it was no 

longer intending to include specific 

provisions relating to the SILs and SMC 

affected by the January 22, 2013, court 

decision referenced above. As noted in 

EPA’s May 29, 2007, final action on 

Kansas’ PSD program (72 FR 29429), 

provisions of the incorporated 2002 

NSR reform rule relating to the Clean 

Unit Exemption, Pollution Control 

Projects, (PCPs) and exemption from the 


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recordkeeping provisions for certain 

sources using the actual-to-projectedactual emissions projections test are not 

SIP approved because in 2005 the DC 

Circuit Court vacated portions of the 

rule pertaining to clean units and PCPs, 

and remanded portions of the rule 

regarding recordkeeping. In addition, 

EPA did not approve Kansas’ rule 

incorporating EPA’s 2007 revision of the 

definition of ‘‘chemical processing 

plants’’ (the ‘‘Ethanol Rule,’’) (72 FR 

24060, May 1, 2007) or EPA’s 2008 

‘‘fugitive emissions rule,’’ (73 FR 77882, 

December 19, 2008). Otherwise, Kansas’ 

revisions also incorporate by reference 

the other provisions of 40 CFR 52.21 as 

in effect on July 1, 2011. 

VII. What are the additional provisions 

of the March 1, 2013, SIP submission 

that EPA is proposing to take action on? 

Within Kansas’ March 1, 2013, SIP 

submission, Kansas amended rule KAR 

28–19–350 ‘‘Prevention of Significant 

Deterioration (PSD) of Air Quality,’’ to 

defer the application of the PSD 

permitting requirements to CO2

emissions from bioenergy and other 

biogenic stationary sources pursuant to 

the July 20, 2011, EPA final rulemaking 

‘‘Deferral for Carbon Dioxide (CO2) 

Emissions from Bioenergy and other 

Biogenic Sources Under the Prevention 

of Significant Deterioration (PSD) and 

Title V Programs’’ (see 76 FR 43490). 

The Biomass Deferral delays until July 

21, 2014, the consideration of CO2

emissions from bioenergy and other 

biogenic sources (hereinafter referred to 

as ‘‘biogenic CO2 emissions’’) when 

determining whether a stationary source 

meets the PSD and Title V applicability 

thresholds, including those for the 

application of Best Available Control 

Technology (BACT). Stationary sources 

that combust biomass (or otherwise emit 

biogenic CO2 emissions) and construct 

or modify during the deferral period 

will avoid the application of PSD to the 

biogenic CO2 emissions resulting from 

those actions. The deferral applies only 

to biogenic CO2 emissions and does not 

affect non-GHG pollutants or other 

GHG’s (e.g., methane (CH4) and nitrous 

oxide (N2O)) emitted from the 

combustion of biomass fuel. Also, the 

deferral only pertains to biogenic CO2

emissions in the PSD and Title V 

programs and does not pertain to any 

other EPA programs such as the GHG 

Reporting Program. Biogenic CO2

emissions are defined as emissions of 

CO2 from a stationary source directly 

resulting from the combustion or 

decomposition of biologically-based 

materials other than fossil fuels and 

mineral sources of carbon. Examples of 

‘‘biogenic CO2 emissions’’ include, but 

are not limited to: 

• CO2 generated from the biological 

decomposition of waste in landfills, 

wastewater treatment or manure 

management processes; 

• CO2 from the combustion of biogas 

collected from biological decomposition 

of waste in landfills, wastewater 

treatment or manure management 

processes; 

• CO2 from fermentation during 

ethanol production or other industrial 

fermentation processes; 

• CO2 from combustion of the 

biological fraction of municipal solid 

waste or biosolids; 

• CO2 from combustion of the 

biological fraction of tire-derived fuel; 

and 

• CO2 derived from combustion of 

biological material, including all types 

of wood and wood waste, forest residue, 

and agricultural material. 

EPA recognizes that use of certain 

types of biomass can be part of the 

national strategy to reduce dependence 

on fossil fuels. Efforts are underway at 

the Federal, state and regional level to 

foster the expansion of renewable 

resources and promote bioenergy 

projects when they are a way to address 

climate change, increase domestic 

alternative energy production, enhance 

forest management and create related 

employment opportunities. 

For stationary sources co-firing fossil 

fuel and biologically-based fuel, and/or 

combusting mixed fuels (e.g., tire 

derived fuels, municipal solid waste 

(MSW)), the biogenic CO2 emissions 

from that combustion are included in 

the biomass deferral. However, the fossil 

fuel CO2 emissions are not. Emissions of 

CO2 from processing of mineral 

feedstocks (e.g., calcium carbonate) are 

also not included in the deferral. 

Various methods are available to 

calculate both the biogenic and fossil 

fuel portions of CO2 emissions, 

including those methods contained in 

the GHG Reporting Program (40 CFR 

part 98). Consistent with the other 

pollutants in PSD and Title V, there are 

no requirements to use a particular 

method in determining biogenic and 

fossil fuel CO2 emissions. 

EPA’s final biomass deferral rule is an 

interim deferral for biogenic CO2

emissions only and does not relieve 

sources of the obligation to meet the 

PSD and Title V permitting 

requirements for other pollutant 

emissions that are otherwise applicable 

to the source during the deferral period 

or that may be applicable to the source 

at a future date pending the results of 

EPA’s study and subsequent rulemaking 

action. This means, for example, that if 

the deferral is applicable to biogenic 

CO2 emissions from a particular source 

during the three-year effective period 

and the study and potential future 

rulemaking do not provide for a 

permanent exemption from PSD and 

Title V permitting requirements for the 

biogenic CO2 emissions from a source 

with particular characteristics, then the 

deferral would end for that type of 

source and its biogenic CO2 emissions 

would have to be appropriately 

considered in any applicability 

determinations that the source may 

need to conduct for future stationary 

source permitting purposes, consistent 

with the potential subsequent 

rulemaking and the Final Tailoring Rule 

(e.g., a major source determination for 

Title V purposes or a major modification 

determination for PSD purposes). 

EPA also wishes to clarify that we do 

not require that a PSD permit issued 

during the deferral period be amended 

or that any PSD requirements in a PSD 

permit existing at the time the deferral 

took effect, such as BACT limitations, be 

revised or removed from an effective 

PSD permit for any reason related to the 

deferral or when the deferral period 

expires. The regulation at 40 CFR 

52.21(w) requires that any PSD permit 

shall remain in effect, unless and until 

it expires or it is rescinded, under the 

limited conditions specified in that 

provision. Thus, a PSD permit that is 

issued to a source while the deferral was 

effective need not be reopened or 

amended if the source is no longer 

eligible to exclude its biogenic CO2

emissions from PSD applicability after 

the deferral expires. However, if such a 

source undertakes a modification that 

could potentially require a PSD permit 

and the source is not eligible to 

continue excluding its biogenic CO2

emissions after the deferral expires, the 

source will need to consider its biogenic 

CO2 emissions in assessing whether it 

needs a PSD permit to authorize the 

modification. 

Any future actions to modify, shorten, 

or make permanent the deferral for 

biogenic sources are beyond the scope 

of the Biomass Deferral action and this 

proposed approval of the deferral into 

the Kansas SIP, and will be addressed 

through subsequent rulemaking. The 

results of EPA’s review of the science 

related to net atmospheric impacts of 

biogenic CO2 and the framework to 

properly account for such emissions in 

Title V and PSD permitting programs 

based on the study are prospective and 

unknown. Thus, we are unable to 

predict which biogenic CO2 sources, if 

any, currently subject to the deferral as 

incorporated into the Kansas SIP could 

be subject to any permanent 


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22840 Federal Register / Vol. 78, No. 74 / Wednesday, April 17, 2013 / Proposed Rules 

exemptions, or which currently deferred 

sources could be potentially required to 

account for their emissions. 

Similar to our approach with the 

Tailoring Rule, EPA incorporated the 

biomass deferral into the regulations 

governing state programs and into the 

Federal PSD program by amending the 

definition of ‘‘subject to regulation’’ 

under 40 CFR 51.166 and 40 CFR 52.21 

respectively. Kansas implements its PSD 

program by incorporating section 52.21 

by reference in KAR 28–19–350. The 

Kansas submission incorporates by 

reference the (CFR) through July 1, 

2011, in order to adopt the Biomass 

Deferral. 

Based upon EPA’s analysis of the 

required provisions of the July 20, 2011 

Biomass Deferral rule and how Kansas 

meets these requirements, EPA is 

proposing to approve the March 1, 2013, 

Kansas SIP revision in order to adopt 

the Biomass Deferral. 

VIII. What action is EPA proposing? 

EPA proposes to approve the 

infrastructure SIP submissions from 

Kansas which address the requirements 

of CAA sections 110(a)(1) and (2) as 

applicable to the 1997 and 2006 NAAQS 

for PM2.5. Based upon review of the 

State’s infrastructure SIP submissions 

for the 1997 and 2006 PM2.5 NAAQS, 

and relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Kansas’ SIP, EPA believes that Kansas 

has the infrastructure to address all 

applicable required elements of sections 

110(a)(1) and(2) (except otherwise 

noted) to ensure that the 1997 and 2006 

PM2.5 NAAQS are implemented in the 

state. 

In addition, EPA proposes to approve 

two additional SIP submissions from 

Kansas, one addressing the Prevention 

of Significant Deterioration (PSD) 

program in Kansas as it relates to PM2.5

(unless otherwise noted) and another 

SIP revision addressing the 

requirements of section 128 of the CAA, 

both of which support the requirements 

associated with infrastructure SIPs. 

We are hereby soliciting comment on 

this proposed action. Final rulemaking 

will occur after consideration of any 

comments. 

IX. Statutory and Executive Order 

Review 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

X. Statutory Authority 

The statutory authority for this action 

is provided by Section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements. 

Dated: April 5, 2013. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2013–09053 Filed 4–16–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0091; FRL–9803–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; State Board Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve a 

State Implementation Plan (SIP) 

revision submitted by the Delaware 

Department of Natural Resources and 

Environmental Control (DNREC) on 

January 11, 2013. The SIP revision 

addresses the requirements of the Clean 

Air Act (CAA) for all criteria pollutants 

of the national ambient air quality 

standards (NAAQS) in relation to State 

Boards. In the Final Rules section of this 

Federal Register, EPA is approving the 

Delaware SIP revision as a direct final 

rule without prior proposal because 

EPA views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

DATES: Comments must be received in 

writing by May 17, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0091 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2013–0091, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 


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